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HomeMy WebLinkAbout02-01-13IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA IN RE: ORPHANS' COURT DIVISION EDITH S. RIFE TRUST NO. 21-11-0325 N0.21-10-1006 NO. 21-83-0773 ~ ~=~ .~:~; JUDGE ALBERT H. MASLAND ~~'~- ~ ~~-~ ~~ ~~~' "~~ ~~~ MOTION FOR LEAVE OF COURT `~=~ "~~ ~~ ' ~ TO AMEND ANSWER ~;~ IOW ~C!v~, Steven A. Maxwell, Sherri Maxwell, Douglas Maxwell, and Barry ~~, cy ~ ~.. ©~ ~aa~w elhereinaft~ " w~ Movants") by and through their undersigned counsel, moving this Court ~,~ for the right to amend their Answer filed on June 4, 2012 stating in support thereof the following: 1. On October 27, 2011, John W. Maxwell filed a Motion for Rule to Show Cause asking the Court to direct the Executor for the deceased Trustee to show what cause he may have why the Court should not find that the deceased Trustee had breached his fiduciary duty with regard to the Trust and reserving the question of damages for further consideration by the Court. 2. On June 4, 2012, Movants filed an Answer to the aforementioned Motion and to the New Matter raised by the Executor requesting that this Court issue a Declaration that Charles I. Rife breached his fiduciary duty as Trustee of the Edith S. Rife Trust and to reserve the question of damages for further consideration by the Court. 3. On January 16, 2013, John W. Maxwell filed Motions for Judgments on the Pleadings including averments that "the other remainder beneficiaries of the Edith S. Rife Trust would need to plead in the Trust matter that Defendant breached one or more of his fiduciary duties to them while he was serving as Trustee of the Trust, during his lifetime." \~~~ 4. John W. Maxwell further states, "In their Answer to Motion for Rule to Show Cause (which answers also the New Matter raised by the Executor), the other trust beneficiaries deny, in paragraphs 12a through 12d of their Answer, that Defendant breached his fiduciary duty during his lifetime." 5. The denial of the other remaining beneficiaries as set forth in paragraph 12a-d merely represented a specific lack of knowledge as to what Charles J. Rife did, or did not do, in his fiduciary capacity as Trustee of the Edith S. Rife Trust. Quite simply, the other beneficiaries had no knowledge or information available to them to determine whether he may have breached his duties as Trustee. This is exactly why they retained counsel to investigate and assist them with this unknown answer. 6. Counsel for John W. Maxwell now submits to this Court that the denial in the Answer filed to paragraph 12a-d of the October 27, 2011 Motion should be interpreted to disallow the other remaining beneficiaries from being able to assert a claim in the Trust matter despite their WHEREFORE clause in the June 4, 2012 Answer clearly and conspicuously requesting this Court to issue a Declaration finding that Charles I. Rife breached his fiduciary duty as Trustee of the Edith S. Rife Trust. 7. The trial court's discretion in permitting an amendment to the June 4, 2012, Answer filed is broad, The Brickman Group, Ltd. v. CGU Insurance Co., 2004 Pa. Super 487, 865 A.2d 918 (2004). 8. The right to amend a pleading should be granted liberally at any stage of a proceeding unless the amendment is against a positive rule of law or results in undue prejudice or surprise to the opposing party. Paravati v. Port Authority of Allegheny Countx, 914 A.2d 946 (Pa Commw. Ct. 2006), appeal denied, 594 Pa. 706, 936 A.2d 42 (2007); Robinson Protective Alarm Co. v. Bolger & Picker, 512 Pa. 116, 516 A.2d 299 (1986). 9. The amendment sought to be filed is narrow (paragraph 12 only) and makes the Answer filed consistent with the requested relief sought which is not against a positive rule of law nor results in undue prejudice or surprise because the other remaining beneficiaries had requested the relief sought already in their original filed Answer. 10. The Honorable Albert H. Masland has been the presiding Judge in these proceedings and has previously ruled on several issues in this matter. 11. Counsel for Movants sought concurrence of opposing counsel. Counsel for Movants was advised that Attorney Wayne Shade was out of the office all week. Attorney David Fitzsimmons advised counsel that he was unable to reach his client so they were not concurring. WHEREFORE, Movants pray leave to amend their aforesaid Answer by substituting the words "Admitted" in their Answer to the averments of paragraph 12a-d for the words: "After reasonable investigation, Respondents are without knowledge or information sufficient to form a belief as to the truth of the averment." Respectfully submitted, LAW OFFICES OF CRAIG A. DIEHL Date: ~ ~ By: Craig A iehl, squire Attorney I.D. No. 52801 3464 Trindle Road Camp Hill, PA 17011 Tel: (717)763-7613 Fax: (717)763-8293 Attorney for Steven A. Maxwell, Sherri Maxwell, Douglas Maxwell and Barry Maxwell CERTIFICATE OF SERVICE AND NOW, the 1St day of February, 2013, the undersigned hereby certifies that a true and correct copy of the foregoing Answer was served upon the opposing parties by way of United States first class mail, postage prepaid, addressed as follows: Murrell R. Walters, III, Esquire 54 East Main Street Mechanicsburg, PA 17055 Attorney for Fred H. Junkins Wayne F. Shade, Esquire 53 W. Pomfret Street Carlisle, PA 17013 Co-counsel for Fred H. Junkins James D. Cameron, Esquire 1325 North Front Street Harrisburg, PA 17102 Attorney for John W. Maxwell David A. Fitzsimmons, Esquire Martson Law Office 10 East High Street Carlisle, PA 17013 Co-counsel for John W. Maxwell 1 r ra A. Fike, Legal Secretary